“An Executive of Huawei has recently been arrested in Canada and is in the course of applying for bail. This article is going to discuss the factors that a common law judge will consider when it comes to bail.”

1.  Necessity for bail
When a defendant appears in court for a criminal prosecution, his case may not be disposed immediately because of various reasons. While the Court may sentence immediately if the defendant pleads guilty, the sentencing is obvious and fixed and the Court has the required sentencing authority, usually more information is required for both conviction and sentencing. In such circumstances, an adjournment is required.
In addition, the Court is also obliged to look into the defendants’ backgrounds in some cases in order to determine the most suitable mode of detention or the discharge thereof for the defendant. Under normal circumstances, the defendant may elect not to plead guilty or non-guilty during his first or later appearances in court until trial. Even after the trial has commenced, the court may have to adjourn the hearing for other reasons. Further, even after conviction and sentencing, the defendant may exercise his right to appeal and be entitled to proper care and treatment before the appeal is concluded. Any factor above may lead to a necessity on the part of the Court to consider whether the defendant should be released on a bail pending trial.


2.  Stages of bail application
A suspect is entitled to apply for bail at any stage after arrest before the Police or before the Court, depends on the progress of the matter. After being arrested and charged, the decision on whether to grant bail rests on the police until the matter is committed to the Court; upon which the Court will make the decision on whether to grant bail when it hears the case. If the Magistrates’ Court refuses the bail application, the applicant can appeal the decision to the High Court.


3.  Factors affecting the application of bail
Whether bail be granted depends on two factors: The crime being charged and the defendant’s background.

A.  The main considerations for the crime charged
(1) The nature of the crime charged. The more serious the crime and the higher the likelihood that the defendant is going to abscond, the lower the chance of obtaining a bail;
(2) The number of charges and the possible sentence. Subject to other relevant factors, in general more charges tend to lead to a longer sentence, which will reduce the chance the defendant be released on bail；
(3) Whether it is an organized crime and the number of participants. The higher is number of participants in the organized crime, the lower is the chance the defendant be granted bail；
(4) Whether it is an aggravated crime such as excessive violence, the degree of harm to the victim, etc. The higher the level of violence, such as murder, knife robbery, the less chance the defendant be granted bail；
(5) Whether it is a gang crime, whether the defendant has the ability to conceal his identity, whether he may escape to other countries without proper travel documents and whether he may forge his identity documents. If the defendant has forged his identity documents and has a strong competence in concealing his identity, the less chance the defendant is going to get a bail.
(6) Whether the crime charged is spontaneous or carefully planned. For crimes involve elaborated planning, the chance of getting a bail is lower.
(7) Whether the police arrested the defendant after an extensive and in-depth investigation. That is, if substantial effort has been spent on arresting the defendant, the defendant will have less chance of being granted bail；
(8) The likelihood of the defendant being convicted based on the available evidence. If the prima facie evidence alone is sufficient for conviction, it is less likely that the defendant will be able to obtain a bail；
(9)  The highest possible punishment and the defendant’s previous criminal record are important considerations. If the defendant is a repeated offender, it is unlikely that he is going to get a bail；
(10)  If there is reasonable doubt that the defendant will engage in falsifying defences or aiding suspects to escape, or possibility that he may conceal or even destroy relevant evidence to the case; these may lead to a risk that the defendant is going to pervert the course of justice. In such case, the chance of obtaining a bail will be low；

B.  The defendant’s background
The following list of factors in relation to the defendant’s background non-exhaustive. The following are a few examples：
(1) Whether the defendant’s residential address is relatively consistent or otherwise and whether the address is close to the victim or other witnesses. If the defendant habitually resides in the court’s jurisdiction, the chance of a bail being granted is higher；
(2) Whether the defendant’s financial status allows him to abscond bail to other countries or conceal his identity easily. If the defendant has a good and stable financial status and a high tendency of overseas travels by plane, the chance of the defendant for getting a bail will be lower；
(3) Employment status, whether the defendant is employed and has a stable job；
(4) Family relationships and responsibilities. The situation of the defendant’s family members and the defendant’s role at home are factors to be considered；
(5) Ethnic background (including overseas relationships) and whether the defendant is an illegal immigrant are factors to be considered；
(6) Social background, including the relationship with the victim；
(7) The defendant’s criminal record. If the defendant has a clean record, it is likely that he is going to get a bail；
(8) The defendant’s health condition, whether he has drug addictions or other bad habits；
(9) The defendant’s age and his relationship with the bailor；
(10) Whether the defendant deliberately withhold relevant materials in order to obtain bail；
(11) Whether there is any behaviour relating to evading investigation or arrest；
(12) Whether there are any attempts of resisting arrest or escaping from legal detention；and
(13) The defendant’s wealth and influence and whether there is a risk that the defendant will use his wealth and influence to affect the witnesses.

Therefore, the court will consider all the relevant factors, such as those aforementioned, before it can decide whether to grant bail to the defendant.

In the current case of Huawei’s executives, without knowledge on the full particulars of this case, no specific comments or analysis will be hereby made. However, this case does serve as a good opportunity for us to understand the extent of the long-arm jurisdiction of United States. If the defendant is fortunate and is prosecuted by a state that compensates wrongful imprisonment, such as New York, the state may potentially compensate the defendant if he is found not guilty subsequent to a wrongful imprisonment sentence. However, the conditions thereof are strict, and the amount of compensation is limited, with maximums prescribed for such compensation in some cases. Louisiana for example has prescribed that the maximum limit of such compensation be set at USD 150,000.
On the other hand, if the defendant is prosecuted by a state without the aforesaid compensation system, like Pennsylvania, even if the defendant has been imprisoned for decades and is subsequently found to be not guilty, the state in general will not compensate for the defendant’s losses. The defendant may even have to pay for his own lawyers. The criminal justice system in Hong Kong is also the same where defendants will not be statutorily compensated even after extensive imprisonment and are then found to be not guilty, although claiming civil false imprisonment for damages may potentially be possible subject to the details of the cases.

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